Vera Persic v Herbert Koeck [1995] ACTSC 31 (31 March 1995)

SUPREME COURT OF THE ACT

VERA PERSIC v. HERBERT KOECK
No. SC703 of 1989
Number of pages - 16
Negligence - Damages

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
MASTER A HOGAN

CATCHWORDS

Negligence - Breach of duty of care - Personal Injury - Use of Motor Vehicle - Whether injury caused by breach.

Damages - Assessment - Personal Injury - Motor Vehicle Accident - Pre-existing low back pathology - Discount for chance of producing similar symptoms - General Damages - Economic loss.

Wilson v Peisley (1975) 7 ALR 571
Assessment of Damages, Luntz, 3rd edn., 2.2.5-2.2.8.

HEARING

CANBERRA, 5 and 6 December 1994
31:3:1995

Counsel for the Plaintiff: Mr G.J. Lunney

Instructing Solicitors: Sneddon Hall and Gallop

Counsel for the Defendant: Mr L. Morris QC with Mr M. McDonough

Instructing Solicitors: Abbott Tout Russell Kennedy

ORDER

THE COURT ORDERS THAT:
Judgment be entered for the plaintiff in the sum of $327,558.00

DECISION

MASTER A HOGAN This is an action for damages for personal injury sustained by the plaintiff in a motor vehicle accident on 12 August 1988.

2. The plaintiff is a married woman who was born in Croatia on 23 October 1949. She married in Croatia in 1967, her first daughter was born there in 1967, and the family came to Australia in 1971. A second daughter was born in 1972, after which she worked as a cleaner at Woden Valley Hospital for a time. Her son was born in 1976, and she later obtained employment as a diet maid in that hospital. She became a permanent employee in that position in June 1977. Her state of health, and particular the condition of her spine in 1988, is one of the areas of contention in the case.

3. At about 3.30 p.m. on 12 August 1988 she left work at the hospital, and was driving her Volkswagen sedan to her home. She came to the roundabout at the intersection of Yamba Drive and Melrose Drive and stopped to give way to traffic already on the roundabout.

4. As she was stopped she looked in the rear-vision mirror and saw some planks flying through the air towards the back of her car. She was wearing a seat belt. She bent forwards towards the steering wheel, and felt a bump as the planks hit the back of her car. She said in her evidence-in-chief that she had her foot on the brake, but her car was moved forward, how far she could not say.

5. The defendant is a carpenter who was driving in the same direction as the plaintiff. His vehicle was a 1969 Ford Utility, which had a steel rack secured to enable planks to be carried above the roof of the cabin. On the roof rack were about six oregon planks, about 5.5 metres long. They were about 8 inches by 2 inches with metal edging at the ends, and his estimate was that each weighed 15 to 20 kilos. They were secured to the rack by a bungee strap and a piece of rope.

6. His evidence was that he stopped behind the plaintiff's Volkswagen, and observed the traffic on the roundabout. The body of traffic for which they had stopped passed by. He continued,

"There was another car coming about 100 metres away and I looked at
that and then it was far away and I thought the Volkswagen will be
gone, not realising that the Volkswagen was still there so I drove on
again and stopped the car suddenly and that's where the planks went
forward and two hit the Volkswagen at the back on the slow motion."

7. He said that he moved forward about 2 to 2.5 metres, at a speed of about 6 or 7 kilometres an hour, in first gear. So far as he could see, the Volkswagen did not move when it was struck.

8. He got out of his vehicle. Two of the planks were resting on the back of the Volkswagen on the motor cover, the other ends of them being still on the roof rack. On a photograph of the rear of a Volkswagen he identified the point of impact as being just above the cover of the light that illuminates the number plate, and just below the air intake.

9. Counsel for the defendant effectively conceded that the defendant failed to exercise reasonable care, in the manner in which the planks were attached to the roof rack. It is clear that they should have been more securely attached, and that it was likely that someone would be injured if they came off the utility in the way that they did. But in his submission that concession does not necessarily result in a judgment for the plaintiff.

10. The defendant's case is that the force of the impact on the plaintiff's vehicle was not sufficient to cause the injury of which she complains, and that her disabilities were caused by factors other than this accident. The two aspects of the submission are interrelated.

11. The plaintiff said that she was shocked when the planks hit her car. She got out of her car and saw people collecting planks. Planks were on her car. Asked how many, she replied, "I don't know, was five, six."

12. In cross-examination she said that the planks were not still resting on her car, but were on the road.

13. The defendant's evidence was that, although more than two planks moved forward, only two collided with the plaintiff's Volkswagen, and they came to rest with one end on the plaintiff's car and the other still on the roof rack.

14. The defendant said that he and his partner moved the planks back on to the roof rack. His partner did not give evidence. In a written statement that the defendant made in December 1989 he did not say how many planks hit the Volkswagen.

15. That statement was, in general terms, consistent with his evidence. It was submitted to Mr Simpson, a consulting engineer. He made calculations based upon an impact of only two planks with the rear of the Volkswagen. On the evidence I am not satisfied that any more than two planks did collide with the car.

16. He also based his calculations and opinion on a weight for each plank of 26.5 kg, which is more favourable to the plaintiff than the defendant's estimate of their weight. He made a number of reasonable assumptions about the position of the planks on the utility, which were not contested. He assumed that the defendant's vehicle was not supporting any of the weight of the planks as they were projected forward, and an initial velocity of about 3 metres a second, or about 10 kilometres an hour.

17. Using trajectory analysis, on those assumptions, he calculated the velocity of the two planks at the moment that they struck the Volkswagen at 7.5 metres per second.

18. He likened the impact to that of a 12 year old boy (52 kg) running into the vehicle at a running pace. In most football teams such a boy would be more suited to the backs than to the forwards, but one sees the point of the analogy.

19. The impact would then be absorbed by the mass and structure of the vehicle and its suspension, and the isolation and shock absorption of the seat itself, before being transmitted to the plaintiff's body.

20. That first calculation, and the running boy analogy, was based on the hypothesis that the utility was travelling at about 3 metres per second, or 10 kilometres an hour, when the brakes were applied.

21. If the defendant's version were accepted, that is, that he had initially stopped and then moved forward, thinking that the Volkswagen had moved off, but applied his brakes again when he saw that it had not, the initial horizontal velocity of the planks would be of the order of 2 metres per second, or 7.2 kilometres per hour. The velocity of the planks on impact would then be 4.5 metres per second (16.2 kilometres per hour).

22. I do not see any reason to disbelieve the defendant's evidence about his moving off after having stopped. The plaintiff was not in a position to contradict it. It was not really exculpatory. He was not diffident about admitting his fault in not securing the planks properly.

23. There is however no real evidence about the speed that he attained before he applied the brakes again. He was still in first gear. He had only moved forward about 4 metres. He estimated that he reached about 6 or 7 kilometres an hour, which is consistent with the expert's opinion. Even if he started with relatively heavy acceleration I do not think that he could have achieved more than 10 kilometres an hour, which is the higher figure used by Mr Simpson.

24. Making those assumptions generally favourable to the plaintiff's case, it is probable that two planks, with a combined weight of about 53 kg, struck the back of the plaintiff's car at a velocity of about 7.5 metres per second.

25. The plaintiff claimed that a large part of the back of her car was damaged, but did not tender any of the three quotations that she obtained for the repair. I accept the defendant's evidence about the damage to her car.

26. It is apparent therefore that it was a relatively minor impact.

27. It is notorious that injuries in motor vehicle accidents are not proportional to the violence of the impact. Relatively minor collisions have many times caused injury with very serious consequences, especially injury to the cervical spine. People have walked away from mangled wrecks with only a few abrasions.

28. But Mr Simpson, who is familiar with the relevant literature, gave evidence that lumbar injuries from minor rear-end collisions are relatively rare. That accords with common sense.

29. I approach the plaintiff's case therefore on the basis that the collision was of a type which was inherently unlikely to have caused the type of injury of which the plaintiff complained.

30. I am not persuaded, however, that it was impossible that it could have done so. Nor am I of the view that the plaintiff must demonstrate the precise mechanism by which the injury was caused.

31. It is obviously necessary, however, to examine the plaintiff's medical history and complaints with some care.

32. Unfortunately, the plaintiff did not advance her case by a number of responses that she gave in evidence. It is obvious that she was aware that the condition of her back before the accident was an important issue in the case.

33. In her evidence-in-chief she was asked whether she had any pain in her low back before the subject accident. She replied that she had once twisted her back muscles when pulling a trolley at work, and had three days off work, on the advice of her general practitioner, Dr Ferguson. She claimed that the pain she had on that occasion was different from the pain after the accident.

34. In cross-examination she fixed the date of that accident as having been in 1981 or 1982. She saw Dr Appel in the Staff Clinic at Woden Valley Hospital, filled out a compensation form, and it was Dr Appel who gave her 3 days off. She was repeatedly emphatic that between that time and 1988 she had no problems with her back. There was no evidence from Dr Appel, nor any tender of records from the staff clinic.

35. The plaintiff was cross-examined about an attendance on Dr Ferguson on 19 January 1984, when she was said to be complaining of intermittent back pain over the previous two weeks. She denied it, and suggested that it was her daughter Myra who had a back problem at the time.

36. She was cross-examined about an attendance on Dr Ferguson in May 1985, complaining of lower back pain, and again she insisted that it must have been her daughter.

37. The defendant tendered a copy of a document signed by Dr Ferguson and dated 22 May 1985, which read

"This is to certify that Mrs V. Persic is suffering from lower back
pain due to recurrence of spinal subluxation for which I have advised
manipulative treatment by a chiropractor."

38. She denied ever having visited a chiropractor in her life. Yet she admitted that her signature appeared as applicant on a form of the Canberra Chiropractic Clinic dated 24 May 1985. Despite the fact that not only the signature but also the personal details on that form obviously referred to her, she persisted in her denials, and in her assertion that it was her daughter who saw the chiropractor.

39. Her daughter Myra was not called to give evidence, and no explanation of her non-attendance was proffered. I assume that she would not have corroborated the plaintiff's statements.

40. Dr Ferguson was called. He gave evidence that on 19 January 1984 the plaintiff consulted him, complaining of intermittent back pain over the previous two weeks, mild at rest but severe with back movements and other activities such as walking, lifting and carrying. There was no radiation of pain to the legs, but she had a crawling sensation in the front of her thighs on one occasion. He felt that that symptom was due to nerve root compression. He administered manipulative treatment to her spine. He also gave her a referral to a chiropractor, but there is no evidence that she underwent any chiropractic treatment at that time.

41. He saw her again on 22 May 1985, when she complained of four days increasing lower back pain, which was spreading to the upper half of her right thigh at the front with a tingling sensation in the thigh. He considered the condition to be due to spontaneous displacement of her spine. He again manipulated it, but without response, and again he referred her to the chiropractor Mr Keynes. It is obvious that it was she who received the treatment from Mr Keynes on 24 and 27 May 1985. Her denials were deliberately untrue. I have therefore regarded her evidence in general with caution.

42. However, the principal issue in this case does not depend greatly on her evidence. There is no doubt that she now has disabling pathology of the lumbar spine. The question is whether the subject accident caused or exacerbated it. The answer to that depends much more on the evidence of the doctors than of the plaintiff. But insofar as any medical opinion depends to any extent on her assertion that she had, before the accident, suffered only one minor, muscular, incident at work in 1981 or 1982, the opinion obviously rests on insecure foundations.

43. Immediately after the accident she waited for the police to arrive. The defendant had left his name and address with her and continued on his way. After she gave the usual information to the police she went home. She did not seek any medical attention that day, "because I was thinking I'm alright."

44. At home she felt shocked, and did not sleep well, and the next morning claimed to have pain in her back. Nevertheless, she went to work. She said that after an hour she was in worse pain, and the supervisor sent her home.

45. For the next four days she was rostered off. She did not seek medical attention during those four days. She returned to work. She claimed to be in worse pain over that period. She still did not seek medical attention. Exhibit A confirms that her supervisor reported that she was suffering sufficient discomfort to be sent home from work on 13 and 22 August.

46. On 23 August 1988 she consulted Dr Cleary, who at that time had taken over Dr Ferguson's practice. He recorded that as a result of the accident she had been taken to Woden Valley Hospital. That is clearly wrong, but I do not know whether Dr Cleary made a mistake or the plaintiff misinformed him.

47. She was complaining of neck pain and paraesthesia in the left arm, and back pain with radiation to the left leg. Dr Cleary found some reduction of movement in the neck, and marked reduction of movement of the lumbar spine, with limitation of straight leg raising on the left side to only 30 degrees. He referred her for x-rays of cervical, thoracic and lumbosacral spine, which were taken on 23 November 1988. They disclosed no abnormality in the cervical or thoracic spine, but a narrowing of the disc between L5 and L6, consistent with degenerative changes in this disc.

48. He prescribed analgesic and a muscle relaxant, and referred her for physiotherapy. She said that the physiotherapy made the pain worse. He ordered a CT scan, which was performed on 28 November 1988. This showed some disc bulging which was possibly compressing the L5/S1 nerve root.

49. He referred her to Dr Robson who saw her on 9 January 1989. She told him that nothing had happened to her before the motor car accident. He also recorded that the back pain, or rather the pins and needles in the right leg, began about a week after the accident. It was clear to him that an operation would be needed and he arranged a myelogram. That was performed on 22 March 1989. It confirmed his diagnosis. She accepted his advice to undergo a fusion operation.

50. On 10 May 1990 he performed the operation at Calvary Hospital. He was surprised at the extent of the pathology at L4/5. He fused L4 to S1. She spent 13 days in hospital. She recovered slowly over the next 6 months.

51. Dr Ferguson returned to his practice, and the plaintiff consulted him on 1 February 1991. She complained of a little pain in the front and back of her left thigh and sometimes her right lower limb. She tired easily after about 3 or 4 hours activity.

52. When he saw her on 4 February 1991, Dr Robson thought that her complaints were minimal. He expected her to be able to manage a return to work, though complete fusion could not be verified for some time.

53. In March 1991 Mr Hobday became her case manager, with the responsibility of helping her return to suitable work. She attended some classes to improve her English language skills. She was also referred for assessment to Rehabilitation and Risk Control Services ("RRCS"), where she was examined on 19 July 1991 by Dr Chase, an occupational health physician.

54. She told him she had suffered a mild low back strain in 1985, for which she had three or four days off work. She said that immediately after the accident she noticed pins and needles down her left arm and leg with low back pain. After the operation she said she had recovered slowly, but noticed marked reduction in the leg pain. However, from about March 1991 the pain in the back had been increasing, with a "pulling" pain deep in the left leg.

55. Dr Chase commented that, in the absence of any reports or x-rays it was impossible to be certain about the plaintiff's pre-accident condition. He thought that the history was entirely consistent with a sciatica induced by a sharp shear force subjected to her low back while bending forward. He noted that she exaggerated considerably her pain on examination, whether deliberately or culturally, but she was undoubtedly suffering from low back pain.

56. He recommended a supervised exercise program and a return to some form of part-time work as soon as possible. He assessed her as being permanently unfit for her former job as a diet maid, and doubted that she would ever return to full-time work.

57. On 1 October 1991 she underwent a one-day objective assessment at RRCS. She was not able to complete the assessment process because of pain, and had to return to the Unit on 10 October. She was assessed as having poor potential for formal retraining. Retirement on medical grounds was considered the most appropriate course of action.

58. When Dr Ferguson examined her on 30 May 1992, she appeared to have deteriorated. He thought that the metal plate and screws used in the fusion operation might be contributing to her pain. Since fusion was now solid he recommended their removal. Dr Robson operated to remove them on 24 June 1992.

59. Dr Corry, rehabilitation consultant, examined her and measured her back capabilities in August and September 1992. She reported some improvement in symptoms since the removal of the plates. He concluded that the history was consistent with the precipitation of lumbar disc protrusion and left sciatica by the flexion stresses described as occurring in the motor car accident. Despite the technically good surgery, she had persisting severe dysfunction due to general deconditioning and possibly residual pathology. In his view she was totally unfit for work. She had little capacity for retraining.

60. Mr Hobday confirmed that attempts had been made to find suitable light work for her in the Hospital, but there was nothing available, in the light of her disabilities and lack of other skills.

61. Dr Ferguson's opinion in February 1993 was that the plaintiff was totally and permanently incapacitated for any form of occupation.

62. Dr Robson gave evidence and was cross-examined. In his evidence-in-chief he stated that he felt that the motor car accident contributed a change, superimposed on what was almost certainly some degenerative problem beforehand. I think it is significant that he was so sure about a pre-existing degenerative problem, since he had not been given any history of any prior low back problems. When the history of the incidents in 1981, 1984 and 1985 were put to him he was not inclined to change his view. Nor did he concede that the type of accident involved could not have caused the extensive extrusion of disc material that he had observed at the operation.

63. Dr Ferguson also gave evidence and was cross-examined. I understood Dr Ferguson to say that the history that he had obtained about the 1984 incident was that the pain had occurred, not after any trauma, but simply after travelling as a passenger in a car to the Coast. The 1985 incident also did not result from any trauma, and both incidents had disabled her from work for some days. Her symptoms on both occasions, although not demonstrated as being due to pathology at L4/L5/S1, were consistent with nerve root pressure at that level.

64. There was some confusion, at least in my understanding, about the particular incidents that were being referred to by Dr Ferguson. That led to the following exchange during the cross-examination:

"Mr Morris: And with that sort of back, you'd agree with me, one
could anticipate the onset of problems at any time without a specific
causation?---Yes.
Master: Would it make any difference if that reference to about a
year before, and the possibility of a worker's compensation claim,
were really relating to the episode in January '84? Do you follow me?
So that you then have one incident associated with trauma, and one
without?---The way I'd look at is---
Your answer would be the same, would it?---Well, I think, if I may
explain briefly, the condition that she was suffering from was spinal
instability. In other words, her spine would slip out of alignment.
On the two occasions referred to, that happened spontaneously. On the
middle occasion just referred to, that happened as a result of muscle
contraction, pulling her spine out of alignment, when she moved a
trolley. But they are all instances of the one underlying condition,
that is spinal instability.
You are quite happy on the - quite reasonably confident, on the
history, that there were three episodes?---Well, the middle one I've
just been informed of, but I would not be surprised if it happened,
because it's in the nature of the condition to occur that way.
Mr Morris: See, you got a clear history on the first occasion of,
"Commenced on day after car trip to coast", I can only do - - -
Master: That solves my problems, thanks.
Mr Morris: I mean, with respect, Master, that is - - -
Master: No, thanks.
Mr Morris: Very well. Would your Honour pardon me one moment?
Master: Yes. So that, it was an unstable back?---Yes.
Able to be further damaged by a relatively slight trauma?---Yes.
The motor car accident it seems was relatively slight, right?---I
understand that.
But had the motor car accident not happened and caused the
exacerbation, some other incident might well have done so?---It might,
that is true.
Mr Morris: And with this sort of back you'd expect the onset of pain
to accompany the trauma which aggravated it, wouldn't you?---Yes.
Now, I just want to make sure this is your handwriting - it is MFI 4?
---Yes, it is.
Thank you, doctor. And you'd expect that the trauma would immediately
cause pain with a back as delicate as this, wouldn't you?---I would.
Master: Within what time, doctor?---It's likely to be immediate."

65. In re-examination he made the point that the displacement of the spine is correctable and therefore the condition should be only temporary; as distinct from disc injury, which is a permanent condition. The following further exchange took place:

"Master: Well, we know that she had a disc injury, Dr Robson has told
us so. What, in your opinion caused that disc injury?---Well, based
on the persistent nature of her complaints following the motor vehicle
accident, as distinct from the correctable situation which existed
prior to the motor vehicle accident, I have to answer I consider the
accident was the cause.
If it was the accident that caused it, what period of time would you
have expected to elapse between the motor car accident and the onset
of pain?---That can vary, because the condition may be a sequential
one. The initial amount of disc damage could be aggravated over a
period of weeks or even months by a series of events such as lifting,
sneezing, jarring the back, and it's not necessarily an immediate
maximal injury at the time of the motor vehicle accident. I would say
it is more common for it to be that way, but it is not uncommon for
pain to commence after an interval of between days and months because
of the sequential nature of the injury.
I want to make sure I have not misunderstood some earlier answers.
When you said that had the accident caused a subluxation, you would've
expected the pain to be immediate?---I was referring to disc injury
there, Master. You asked me, I think, if disc injury was a result of
the accident, what would the time relationship of the pain be - - -
But in your earlier answer, where you said you expected the time
relationship to be immediate, you were there speaking of mere
subluxation without any disc injury, is that what you say?---Again,
not necessarily so. I did not paint the whole picture. I agreed that
it could be, and I would expect it to be, an immediate response in
general that one would have pain; but I did not qualify it to say that
that's not invariable. You can have a sequential displacement of the
joints over a period of time and its the final movement that initiates
the pain. It's a matter of degree of displacement. There are plenty
of instances where one comes across minor degrees of displacement that
are not actually causing neck pain or back pain - they're detected by
treatment - and the degree of displacement was insufficient to cause
pain. But in general, a motor vehicle accident which causes
significant displacement will cause pain from that time.
. . .
Mr Morris: Doctor, you need a fair bit of force in a rear end
collision usually to bring about lumbar spine injury, don't you?---It
is a leading question so I would have to say, not invariably.
But it is far more likely the result of a reasonable amount of force,
is it not?---I've known people to damage a disc falling off a chair.
And, I guess, you've known people to damage a disc by leaning over and
picking up an envelope off the floor?---That's true.
What that means is that the person has to be susceptible to that
injury occurring?---Yes.
And it requires a fair degree of forward flexion of the spine, does it
not?---It could be backward or sideways for that matter. It does not
have to be forward.
But a fair amount of quick flexion of the spine?---Again, it is a
leading question because it could be a shearing force, not a flexion
force. I mean, it is the force that causes the disk injury,
certainly, but you cannot define that it's a forward force invariably
or it's a twisting force invariably. It can be a combination.
Master: I do not want to restrict you in any way, Mr Morris, but
would it be helpful to talk about this person's back which we know to
be defective before the motor car accident anyway?
Mr Morris: Well, I would like to come to that in a moment, if I may,
but I do not want to do that directly.
Master: Thank you.
Mr Morris: I want you to assume that someone is sitting in a lounge
chair and they lean forward very rapidly to stop a glass falling off
an adjoining coffee table. That is unlikely to cause a disc rupture,
isn't it?---Yes.
And that's because there's not sufficient flexion of the spine and
it's a self-imposed movement, is it not?---Yes.
Now, if you transport that history to someone in a motor car, looking
in a rear vision mirror, who instinctively moves forward because
they're frightened they are going to be hit by some planks falling off
a car behind, equally that's unlikely to cause a disc lesion, isn't
it?---Yes.
Particularly if the description - this is at page 43.10 of the
transcript - is, just moved your head forward - that she just moved
her head forward and she was also wearing a safety belt. That's
unlikely to bring about a disc lesion, isn't--The movement in itself,
I'd agree, yes.
Now, the usual consequence is a rear end collision where the spine is
actually flexed forcibly when the seat is either wrenched out of the
floor or there is considerable force associated with a rear end
collision. That then is the sort of history where you'd expect to
find or could usually find a lumbar injury?---Yes.
Of course, usually what happens is you get a cervical injury from a
rear end collision, is that right?---I can't say that it's more so
cervical or lumbar. Both are common.
But you need a fair degree of force for the lumbar, don't you?---Yes.

66. On that evidence I think the probabilities are that, before the accident in August 1988, the plaintiff had a degenerative condition of the lumbar spine. That condition had been symptomatic certainly on two occasions, in January 1984 and in May 1985, neither of which had involved significant trauma. There had also probably been an earlier incident, in 1981 or 1982, when the staff clinic doctor allowed her 3 days off work because of pain resulting from twisting as she pulled a trolley at work. The symptoms of pain down the right leg in May 1985 indicate that there was already some degree of nerve root involvement.

67. In August 1988 her back was obviously susceptible to further trauma. Had the history been that, instead of the motor vehicle accident, there had been an incident in which she twisted while pulling a recalcitrant trolley at work, and then had the same symptoms and treatment, a tribunal could comfortably conclude that the 1981, 1984 and 1985 incidents indicated a degenerative condition which, as Dr Robson put it, "blew up completely" in the 1988 incident. One could even entertain the hypothesis that the 1981 incident began the process of disc degeneration, which was slightly exacerbated in 1984 and 1985. On that hypothesis, the determination ultimately made in her favour that her condition arose out of or in the course of her employment was supportable, though on different grounds from those given by the Comcare authority.

68. The question still remains whether the nature of the 1988 incident was such as to have caused the exacerbation which undoubtedly occurred shortly thereafter, or whether the natural progression of the disease would have brought about the same result, even had there been no accident.

69. The evidence of Mr Simpson persuades me that the actual impact of the planks on the back of the Volkswagen was not alone sufficient to cause the injury. Was the plaintiff's reaction, when she saw the planks flying through the air in the rear vision mirror sufficient?

70. The plaintiff's actual evidence about that was as follows:

"Mr Lunney: After you stopped, what happened?---After I stop, I
waiting for traffic to come in from city to plaza and I was standing
few a seconds and I just accidentally look on the rear-view mirror
that is, like, planks flying to me and I bent down and I just was
scared that will go through to the window when chop my head off, and I
just was lie down, like, on the steering wheel, and I just heard,
like, I was, like, push against my seat-belt and I just feel like
somebody bump me and, like, I feel the car was pushed forward."

71. The seat-belt appears to have been a retractable one. The relevant cross-examination was as follows:

"Mr Morris: Now, did you move yourself forward instinctively because
you saw the planks coming?---Yes.
And that was the - - -?---I put my head down because I was thinking
that will chop my head off. That second I was just think that.
But your car wasn't moved forward, was it?---That was bang and push
and I was pushed - - -
How far forward do you say it was pushed?---I don't know.
Well, you kept your foot on the brake?---Yes.
. . .
I just want to ask you about this Volkswagen car. You didn't strike
your stomach or any part of your body on the steering wheel in this
accident, did you?---No.
You didn't actually reach as far forward as the steering wheel, did
you?---It's pushed me up in - - -
You just bent forward didn't you?---After pushed me against my seat
belt.
The seat belt stopped you going any further, did it?---I can't
remember that second what.
But your movement forward was brought about by you leaning forward,
was it not?---That's how is impact pushed me I was pushed I was bent
and that pushed me against the even my seat belt.
But when you saw the planks coming you leant forward, didn't you?---
Yes, I just put my head down because I was thinking chop my head off
that's only second what I was thinking.
What I am suggesting to you is that you moved yourself in the car you
leant forward?---I never moved forward I just moved my head.
Just moved your head forward?---Yes.
So you instinctively ducked your head, is that right?---I just was
careful to going to cut my head off.
But you just ducked your head, didn't you?---That's was second, you
know.
I know it happened very quickly but you saw in the rear vision mirror
the planks coming?---Was flying like rocket.
Yes, and you leant forward, is that right?---Yes, just pushed my head
down.
But you weren't forced against the steering wheel were you?---That's
impact after pushed me and pushed me against my seat belt.
But you didn't touch the steering wheel, did you? You had your hands
on the steering wheel and you leant forward, didn't you?---I cannot
remember.
Is this a correct description of what happened to you? You saw the
planks coming towards you and you crouched forward to avoid them
coming through the rear window, that's what happened isn't it?---
Could I repeat that for you?---Yes, please.
You saw the wood coming towards you - - -?---Yes.
- - - and you crouched forward to avoid it because you thought it was
coming through the rear window?---Yes.
That's what happened?---Yes.
You did not hit your head?---No, if wood through that's kill me.
You didn't get any seat belt bruising?---No.
You got out and walked around, there was nothing wrong with you?---I
never walk round I just slowly go out from the car and sit on the
grass.

72. Those answers must be understood in the light of her lack of facility in the English language, and also of her desire to put her case in what she perceived to be the best light, even if that meant an occasional deliberate inaccuracy. I think that the probabilities are that she did not just duck her head, but did in fact move the upper part of the body towards the steering wheel, though she did not collide with it. I do not think that the car was forced forward at all on impact.

73. Dr Robson did not think it impossible for her to have got the injury in the motor vehicle accident in that way. He did not, however, say that that was the way in which she did get it.

74. Dr Ferguson conceded in cross-examination that it was unlikely that she received the injury in that way.

75. The hypothesis was not put in terms to either Dr Corry or Dr Chase, but the description of the incident in their reports is fairly close to it.

76. Dr Corry recorded the history of the incident as follows:

"She saw the load coming and through (sic) herself forward to protect
herself."

77. He concluded that the history was consistent with the precipitation of lumbar disc protrusion and left sciatica by the flexion stresses described as occurring in that accident. He was not cross-examined.

78. Dr Chase recorded the history as follows:

"As she was sitting there, a vehicle coming from behind lost its load
of wood, which struck the rear of her car. She had seen it coming
towards her and crouched forward to avoid it coming through the rear
window (it did not)."

79. His comment was, "The history is entirely consistent with a sciatica, however, induced by a sharp shear force subjected to her low back while bending forward."

80. The defendant did not call any medical evidence to contradict those conclusions.

81. I am persuaded on the balance of probabilities that the condition of the plaintiff's lumbar spine was such that this seemingly minor incident did cause an exacerbation of her condition, as described by Dr Corry and Dr Chase. The symptoms may not have been immediate, but I accept that their onset was within 24 hours, and indeed that she was unable to work for more than an hour or so the next day because of low back pain. Her evidence to that effect was not challenged, and, despite the caution with which I approach her evidence, I see no reason to doubt it in this respect. It is also corroborated by the information in Exhibit A. It was only 11 days after the accident when she saw Dr Cleary, and it is clear that she was suffering from the effects of a sciatic-type injury when she saw him.

82. It is apparent from the nature of that finding that in this case there must be a quite substantial discount for the chance that the pre-existing condition could have been triggered by some other event to produce similar symptoms. See the discussion of The Egg Shell Skull Rule in Luntz, Assessment of Damages, 3rd edn., 2.2.5 to 2.2.8.

83. To paraphrase the reasoning of Barwick CJ in Wilson v Peisley 1975) 7 ALR 571 at 574:

"the trauma of the accident for which the (defendant) was responsible
no doubt made a present reality out of that which was ever a real
possibility. Thus, whilst the (defendant) must pay for bringing out
that condition, what he must pay must, in my opinion, justly reflect
the fact that that condition was not merely latent in the (plaintiff)
but that events, not of an unusual or unlikely kind, could and might
in the ordinary course of life have evoked that condition had not the
(defendant's) negligence intervened."

84. I agree with the comment by Luntz at 2.2.5 that, in principle, the same approach should apply to all heads of damage, not only loss of earning capacity. Indeed, Stephen J expressly so held, in Wilson v Peisley (supra) at 582, where he said:

"The two factors to which I have already referred, and which His
Honour treated as justifying a substantial reduction in damages for
loss of earning capacity, must play no less a part in the assessment
of other heads of general damages."

85. However, in this case, the application of that approach could possibly impact differently on damages for pain and suffering on the one hand and damages for loss of income earning capacity on the other.

86. As Luntz comments in the footnote 11 on p.131, "Allowance should be made only for 'triggers' that would not themselves give rise to compensation."

87. There are many types of incidents that might have triggered the condition that followed this relatively minor accident. The nature of her work, however, especially the use of heavy trolleys, indicates to me that the most likely trigger other than this accident would have been a work accident. There are also a whole range of possibilities to consider. There might have been a number of minor incidents, such as those in 1981, 1984 and 1985, or perhaps only slightly more severe occurrences. It is not certain that she would ever have suffered the serious injury that she now has, from any cause. I do not therefore agree with the submission that she should be compensated only for the acceleration of an injury that was certainly going to happen to her in any event.

88. But if she did suffer anything like her present injury at work she would have received compensation. If the triggering incident resulted from negligence of her employer, the compensation would have included damages for pain and suffering. If it did not, and that is the more likely, she would have received compensation only for her economic loss.

89. These variables can not be measured. An injury at work attracting only Comcare benefits was, to my mind, a real possibility that must be taken into account, by reducing the discount that should be applied to damages for loss of income earning capacity, both past and future. But the time-frame within which an injury at work, or any injury reducing her income earning capacity, is limited to her working life, about 15 years. The time within which she might have suffered the same sort of pain and suffering extends over her whole life, about 35 years.

90. Upon reflection, there does not seem to me to be sufficient reason to differentiate between general damages and financial loss.

91. The accident happened six and a half years ago. The plaintiff is now only 45. She enjoyed her job. With her lack of skills and facility in English it is most unlikely that she will get any job in the future, even though she herself thinks she is physically capable of doing two or three hours a day of light work.

92. She is not an invalid or a cripple, but she does suffer fairly constant low back pain, radiating at times into her legs. She is not receiving active treatment, because there is nothing that can be done, except to provide painkillers. Her condition will not improve, but is likely to get worse over time. She underwent two operations.

93. Taking into account the discounting factors that I have discussed, which I would put at about 40%, I award $27,000 for general damages. I award $3,500 interest on that component.

94. The actual out of pocket expenses are agreed at $24,295. They must also be discounted, to $14,577.

95. The accountant's report, Exhibit G, shows that her net weekly income at December 1994 was of the order of $400 per week. The past economic loss to 5 December 1994 was $119,557. Bringing that up to date gives a total of $126,000, in round figures. I would discount that, in view of the period of six years involved, to $120,000. She has been receiving periodic compensation, so that no interest is claimed on that element of the award.

96. The Fox v Wood component is agreed at $25,352.

97. The actuary's calculation of future economic loss, not discounted for any contingencies, is $252,052. I think that, in addition to the discounting factor arising from the pre-existing pathology in the plaintiff's lumbar spine, there should be a further discounting on account of the ordinary contingencies of life. But the two overlap to some extent. I allow $126,000 for future loss of income earning capacity.

98. There is also a loss of the benefit to be derived from future employer-funded superannuation, which the actuary calculated at $22,257. I think that figure should be discounted to the same extent as future income earning capacity. I allow $11,129 for loss of superannuation benefit.

99. The total award is therefore made up as follows:

General Damages $27,000.00
Interest 3,500.00
Out of Pocket expenses 14,577.00
Past loss of income 120,000.00
Fox v Wood 25,352.00
Future loss of income 126,000.00
Loss of superannuation benefit 11,129.00
TOTAL $327,558.00